If the President is immune from suit, then all constitutional officials, such as the Vice President, Supreme Court justices, members of Constitutional Commissions and the Ombudsman, who all could only be removed by impeachment, are also immune from suit, according to an election lawyer.
“To say that only the President is immune from suit smacks of unjust or invidious discrimination, thus, violative of the equal protection clause of the Constitution. Since the President belongs to a similar class of impeachable officials under the Constitution, there is no rhyme or reason why the other constitutional officials cannot enjoy the same immunity privilege,” Romulo Macalintal said in a statement on Monday.
Macalintal added that “nothing in the Constitution nor any existing law provides that only the President, or any of theimpeachable officials, is immune from suit.”
The executive immunity provided for under the 1973 Constitution was repealed or removed under the 1987 Constitution since, according to former Chief Justice Reynato Puno, there is “a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.” (Estrada vs Desierto 2001).
“Actually, immunity is a mere ‘tradition.’ Like the highly controversial ‘Aguinaldo doctrine’ laid down by the Supreme Court, it could also be abandoned if, again, like the Aguinaldo doctrine, it is already abused,| Macalintal said.
But the “immunity” applies only to actual cases filed in courts against these officials. Hence, the President and all other constitutional officials can be investigated by the Ombudsman since its decision is merely to file or not to file a criminal case at the Sandiganbayan, he added.
In other words, Macalintal said, the case before the Ombudsman is not the “suit” contemplated in the immunity issue because the Ombudsman does not make a decision where the accused official should be removed from office but only to issue a resolution recommending the filing of a criminal case against a public official before the Sandiganbayan.
Once the case is filed with the court, that is where the privilege of immunity could be invoked since the official faces the danger of being removed from office by judicial action, not by impeachment, he pointed out.
Hence, Macalintal said, any ruling saying the President is immune from suit while the others, like the Vice President is not, “partakes of an unwarranted partiality or prejudice, where the sharper weapon to cut it down is the equal protection clause” of the Constitution. (Baraogo vs Philippine Truth Commission, 2010).